Hayne J
Bell J
56.
"acquisition" of property. It is for this reason that it has been said[1] that s 51(xxxi) does not give protection to "the general commercial and economic position occupied by traders".
Given the centrality of the concept of "acquisition" to the operation of s 51(xxxi) and to the disposition of the present matters, it is useful to repeat some fundamental propositions about this head of power.
It is well established that s 51(xxxi) is concerned with matters of substance rather than form and that "acquisition" and "property" are to be construed liberally[2]. It is equally well established[3] that "acquisition" is to be understood as a "compound" conception, namely "acquisition-on-just-terms". But allowing, as one must, ample meaning to "acquisition" and "property" in s 51(xxxi), there remains a bedrock principle. There can be no acquisition of property without "the Commonwealth or another acquir[ing] an interest in property, however slight or insubstantial it may be"[4]. Giving a liberal construction to "acquisition" and "property" does not, and must not, erode the bedrock established by the text of s 51(xxxi): there must be an acquisition of property.
The arguments advanced by the tobacco companies sought to depart from this bedrock principle and to justify the departure as no more than adherence to "liberal" construction. In particular, they submitted that decisions and statements
- ↑ British Medical Association v The Commonwealth (1949) 79 CLR 201 at 270 per Dixon J; [1949] HCA 44.
- ↑ Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 276 per Latham CJ, 284–286 per Rich J; [1944] HCA 4; Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349–350 per Dixon J; [1948] HCA 7; Attorney-General (Cth) v Schmidt (1961) 105 CLR 361 at 370–372 per Dixon CJ; Clunies-Ross v The Commonwealth (1984) 155 CLR 193 at 201–202 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ; [1984] HCA 65; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 303–305 per Mason CJ, Deane and Gaudron JJ; [1994] HCA 6; The Commonwealth v WMC Resources Ltd (1998) 194 CLR 1 at 49 [128] per McHugh J; [1998] HCA 8; Telstra Corporation Ltd v The Commonwealth (2008) 234 CLR 210 at 230 [43] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ; [2008] HCA 7.
- ↑ See, for example, Grace Brothers Pty Ltd v The Commonwealth (1946) 72 CLR 269 at 290 per Dixon J; [1946] HCA 11.
- ↑ The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 145 per Mason J; [1983] HCA 21.
